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PORNOGRAPHY

The Supreme Court's OBSCENITY decisions define the forms of pornography that are protected from censorship by the FIRST AMENDMENT. As a practical matter, this protection is quite broad. Most pornography is also a unique kind of speech: about women, for men. In an era when sexual equality is a social ideal, the constitutional protection of pornography is a vexing political issue. Should pornographic imagery of male dominance and female subordination be repudiated through censorship, or will censorship inevitably destroy our commitment to free speech?

In ROTH V. UNITED STATES (1957) the Court found obscene speech to be unworthy of First Amendment protection because it forms "no essential part of any exposition of ideas." Yet precisely because of pornography's ideational content, some of it was deemed harmful and made criminal. The Court could avoid examining the specific nature of this harm, once it had located obscenity conveniently outside the constitutional pale. But it could not avoid defining obscenity, and thereby identifying the justification for its censorship.

The essential characteristic of "obscene" pornography is its appeal to one's "prurient interest," which is a genteel reference to its capacity to stimulate physical arousal and carnal desire. But such pornography must also be "offensive," and so, to be censored, sex-stimulant speech must be both arousing and disgusting. The meaning of offensiveness depends upon the subjective judgment of the observer, and is best captured by Justice POTTER STEWART'S famous aphorism in JACOBELLIS V. OHIO (1964): "I know it when I see it."

Given the limitations of the criminal process, obscenity laws did not make offensive pornography unavailable in the marketplace. As HARRY KALVEN, JR. , pointed out, few judges took the evils of obscenity very seriously, although constitutional rhetoric made the law appear to be "solemnly concerned with the sexual fantasies of the adult population." The Court's chief goal was the protection of admired works of art and literature, not the elimination of pornographic magazines at the corner drug store. Sporadic obscenity prosecutions may occur in jurisdictions where the "contemporary community standard" of offensiveness allows convictions under MILLER V. CALIFORNIA (1973). But the constitutional validity of a legal taboo on "hard-core" pornography became largely irrelevant to its suppliers and consumers, even as that material became sexually explicit and more violent in its imagery during the 1970s.

That same decade saw a legal revolution in equality between the sexes, embodied in judicial decisions based on the guarantees of EQUAL PROTECTION and DUE PROCESS. Women won legal rights to control and define their own sexuality, through litigation establishing rights to contraception and abortion, and through legislative reforms easing restrictions on prosecutions for sexual assault. Pornography also became a women's issue, as feminists such as Catharine MacKinnon attacked it as "a form of forced sex, a practice of sexual politics, an institution of gender inequality." Women marched and demonstrated against films and magazines portraying them as beaten, chained, or mutilated objects of sexual pleasure for men. In 1984, their protests took a legal form when MacKinnon and Andrea Dworkin drafted an ordinance adopted by the Indianapolis City Council, outlawing some types of pornography as acts of SEX DISCRIMINATION.

By using the concept of equal protection as a basis to attack pornographic speech, the council set up a dramatic assault upon First Amendment doctrine, making embarrassed enemies out of old constitutional friends. As a strategic matter, however, the council needed a COMPELLING STATE INTEREST to justify censorship of speech that did not fall into the obscenity category. The ordinance defined offensive pornography more broadly than Miller' s standards allow, because it went beyond a ban on displays of specific human body parts or sexual acts. Instead, it prohibited the "graphic sexually explicit subordination of women" through their portrayals as, for example, "sexual objects who enjoy pain or humiliation," or "sexual objects for domination, conquest, violation, exploitation, possession or use."

As a philosophical matter, sex discrimination is a good constitutional metaphor for the harms attributed to pornography, namely, the loss of equal CITIZENSHIP status for women through the "bigotry and contempt" promoted by the imagery of subordination. But as a matter of DOCTRINE, the causal link between the social presence of pornography and the harms of discrimination is fatally remote. Free speech gospel dictates that "offensive speech" may be censored only upon proof of imminent, tangible harm to individuals, such as violent insurrection (BRANDENBURG V. OHIO, 1969), a physical assault (COHEN V. CALIFORNIA, 1971), or reckless tortious injury to reputation (NEW YORK TIMES V. SULLIVAN, 1964). The closest historical analogue to the creation of a cause of action for classwide harm from speech is the criminal GROUP LIBEL statute upheld by a 5–4 Supreme Court in BEAUHARNAIS V. ILLINOIS (1952). But this remedy has been implicitly discredited by New York Times and Brandenburg, given its CHILLING EFFECT upon uninhibited criticism of political policies and officials.

It came as no surprise when early court decisions struck down Indianapolis-type ordinances as void for vagueness, as an unlawful PRIOR RESTRAINT on speech, and as an unjustified restriction of protected speech as defined by the earlier obscenity decisions. The courts could accept neither the equal protection rationale nor the breadth of the ordinances' scope, as both would permit too great an encroachment upon the freedoms of expression and consumption of art, literature, and political messages. Ironically, it is the potentially endemic quality of the imagery of women's subordination that defeats any attempt to place a broad taboo upon it.

Eva Feder Kittay has posed the question, "How is it that within our society, men can derive a sexual charge out of seeing a woman brutalized?" Her answer to that loaded question is that our conceptions of sexuality are permeated with conceptions of domination, because we have eroticized the relations of power: men eroticize sexual conquering, and women eroticize being possessed. Pornography becomes more than a harmless outlet for erotic fantasies when it makes violence appear to be intrinsically erotic, rather than something that is eroticized. The social harm of such pornography is that it brutalizes our moral imagination, "the source of that imaginative possibility by which we can identify with others and hence form maxims having a universal validity."

The constitutional source for an analysis of brutalizing pornography lies in the richly generative symbols of First Amendment law itself. That law already contains the tolerance for insistence "on observance of the civic culture's norms of social equality," in the words of Kenneth L. Karst. Any acceptable future taboo would be likely to take the form of a ban on public display of a narrowly defined class of pictorial imagery, simply because that would be a traditional, readily enforceable compromise between free speech and equality. Any taboo would be mostly symbolic, but it would matter. Only by limiting the taboo can we avoid descending into the Orwellian hell where censorship is billed as freedom.